Africa: "You talk, we die", 09/30/03

AFRICA ACTION Africa Policy E-Journal September 30,
2003 (030930)

Africa: "You talk, we die" (Reposted from
sources cited below)

As the 13th International Conference on AIDS and STIs
in Africa (ICASA) concluded in Nairobi, Kenya last
week, observers were unanimous in noting the stress
on the urgent need for leaders - national and international
- to deliver on promises. Despite overwhelming consensus
on the need for treatment, UNAIDS reported that at
the end of 2002 only an estimated 50,000 people in
sub-Saharan Africa were receiving life-prolonging anti-
retroviral treatment, about one percent of 4.1 million
in immediate need of such treatment. The predictable
result - millions of deaths - is still meeting with
such responses as President Thabo Mbeki's recent remark
that he personally didn't know anyone who had died
of AIDS, and the Bush administration's drive to defeat
an additional $1 billion of U.S. funding for the Global
Fund to Fight AIDS, TB, and malaria.

Reports noted the new level of commitment by the World
Health Organization, which pledged to ensure treatment
for an additional three million people by 2005. Attaining
this goal, however, will require massive increases
in resources, as well as full use of low-cost generic
drugs. On that front, the prospect emerged last week
that Canada might become the first G-7 country to join
Brazil and India in providing generic anti-retrovirals
to countries unable to manufacture them. If this should
happen, despite the lobbying of pharmaceutical companies
against it, it could be a major breakthrough in turning
promises of treatment into reality.

This posting contains two reports from Nairobi, including
the closing speech by Nomfundo Dubula on behalf of
the Pan African Treatment Access Movement. It also
includes a press release and excerpts from a letter
from Canadian organizations on the current move to
amend Canada's patent act to allow increased export
of Canadian generic medicines.

The 13th International Conference on AIDS and STIs in
Africa (ICASA) would not have been complete without
their presence and action.

And they had waited patiently to make their presence
and feelings felt.

Just as delegates were about settling down to business
on the third day of the conference, they rose and spoke,
and ensured that everyone heard their voices.

Numbering just about a hundred, the activists under
the aegis of the Pan-African AIDS Treatment Access
Movement (PATAM) spoke, kicked, railed and acted up
against many 'enemies' of access to treatment for HIV/AIDS
in Africa: Big Pharma, the unfeeling, profit-focused
multinational corporations, African leaders who have
refused to provide treatment for their peoples.

"You talk, we die", yelled the activists,
as they mounted a blockage of the VIP and heads of
governments lounge at the Kenyatta International Conference
Centre, venue of the ICASA.

"I am alive today because of access to treatment",
cried Prudence Mabele of the Positive Women's Network
South Africa, as she joined others to stage a lie-in
on the conference grounds.

"AIDS treatment now", the activists chanted
as they marched round the premises, making quick stops
at the stands of Bristol Myers Squibb, Glaxo Smithkline
(GSK), Merck Sharp Dome (MSD), - all major western
pharmaceutical companies - as well as that of the United
States Agency for International Development (USAID).
Each stand was blockaded and covered up in posters
bearing messages: 'Guilty', 'Keep your promises', 'You
talk, we die'.

"No thanks to these people, Africans are dying
because we can't get drugs", said one of the activists.
The death, last month, of Togolese AIDS activist Iris
Kavege must have infuriated the activists who felt
her life would have been prolonged if she had access
to life-saving but unaffordable treatment.

About 60,000 Africans are said to have access to drugs.
This figure is about 1 percent of the actual number
of people who need treatment. Several promises have
been made to improve the situation but the activists
feel it needs to be backed by necessary action so as
to prolong the life of PLWHAs.

Mercy Otim of the Kenya Coalition for Access to Essential
Medicines called this "the height of government
neglect."

"In Kenya, about 250,000 people living with HIV
need immediate treatment or they will die," she
said.

Ironically, the 13th ICASA was partly sponsored by some
of the pharmaceutical companies the activists are protesting
against. Could they still be accused on insensitivity
considering this gesture? Mohammed Farouk Auwalu of
the Treatment Action Movement (TAM) Nigeria described
that as a Greek gift.

"It is a fraction from the money they made from
those of us who are infected that they are using to
sponsor these conferences so that they can launder
their image. We don't want conferences...we want drugs,
affordable or even free drugs".

At a press conference called after the protest, the
activists also criticized some African governments
for holding the view that what people living with HIV
is nutrition, not treatment.

"We are eating. We have food in Africa, but we
cannot eat food alone. We must take drugs to compliment
good nutrition," said Patricia Asero of the Kenya
Treatment Access Movement.

******************************************************************

Closing ceremony, ICASA 2003 (September 26, 2003)

Speach by Nomfundo Dubula on behalf of the people living
with HIV

My name is Nomfundo Dubula. I am a person living with
HIV. I am from the Treatment Action Campaign in South
Africa and I also represent the Pan African Treatment
Access Movement.

I want to say that as communities and people living
with HIV we ARE ANGRY. Our people are dying unnecessarily.

African leaders, the ball is on your hands. You have
to decide whether you want to lead a continent without
people. So, stop playing hide and seek whilst people
are dying.

The World Health Organisation has declared antiretroviral
therapy a STATE OF GLOBAL EMERGENCY and our leaders
are still in state of denial.

The Doha and the UNGASS declarations have opened the
way to decide about the future of Africa, so, WHEN
IS YOUR ACTION ?? The Doha declaration on health is
hope, and it MUST be implemented.

Two years ago, the Abuja declaration promised 15% of
the budget on health BUT up to now that has not happened.
How many people must die?? Please, move from talks
to real action.

Give women powers to decide and lead and they will overcome
this epidemic.

African leaders, lead us. Don't divide people living
with HIV, as we all want to assist in this fight.

We need CCM's in each country with positive attitudes
towards treatment, specially ARV's, so that we have
effective and unequivocal treatment plans.

We need you to speak out about nutrition and not confuse
us with the debate about nutrition versus ARVs. NUTRITION
GOES HAND IN HAND WITH ARVs!

I also want to address the WHO. WHO has promised to
give technical assistance in the procurement of drugs.
Now we need your assistance in our countries to ensure
that cheaper generic drugs reach every country, with
or without manufacturing capacity.

You also have a key role in ensuring resources for poor
countries. The 3 by 5 plan should also ensure that
all treatment programmes include treatment literacy
efforts. On our side, we commit ourselves in educating
our people and ensure adherence.

We need real leadership in the implementation of effective
strategies to reach the 3 by 5 goal. We will assist
you in this effort if you show commitment and independence
in prioritizing people's health over any other interest.

I want to refer to the drug companies, whose bags are
full with profits. Stop squeezing poor Africans which
only represent 1.3% of your global market.

Don't delay access by giving exclusive licenses that
are only transferring the monopoly to local companies
blocking competition.

I want to say to the donors that they should donate
more money to the Global Fund. We welcome the US initiative
led by president Bush. But we want money that is free
of hidden agendas. Put more money in the Global Fund
and stop blocking our government's rights to import
generic drugs.

IMF and World Bank should cancel the debt, as Africa
is fighting for its life. Don't even pinch the last
drop of its blood.

And where was the Global Fund in this conference? How
can you communicate with our brothers and sisters,
and what is going on with their countries proposals?
We need you to have a booth in the GNAP+ conference
so that you can be visible, and we can ask questions.

The Pan African Treatment Access Movement - PATAM -
is fighting for the lives of Africans. So, we will
continue to mobilize our people as we did in the court
case of the Pharmaceutical companies against the South
African Governent.

We will continue to mobilize our people as we South
Africans did in the PMTCT court against our government.

We will continue to mobilize our communities to ensure
access to treatment and care.

Toronto, September 26 - The Canadian HIV/AIDS Legal
Network welcomed today the federal government's announcement
that it will amend the Patent Act to allow exports
of lower-cost generic medicines to developing countries,
and called on all parties in the House of Commons to
support this measure. But the Network also cautioned
that the government must not restrict the amendment
in ways that would limit its real benefit to patients
needing medicines.

"We congratulate the government for heeding the
call to action," said Richard Elliott, the Network's
Director of Policy & Research. "This is an
opportunity for Canada to act on its stated commitment
to international human rights, and respond in a concrete
and immediate fashion to the health challenges facing
developing countries. We urge all political parties
to ensure speedy passage of this amendment. Thousands
are dying by the day."

The Legal Network called on the government to follow
through with legislation that will translate into concrete
benefits for as many people as possible, and to resist
any calls to water down the amendment, highlighting
three concerns:

* "We are concerned by any suggestion that this
amendment will only allow generic exports to countries
facing health 'emergencies'," said Elliott. "There
is no justification for restricting Canada's response
in this fashion. How many people would have to be
sick or die before something is considered an 'emergency'?
Waiting for things to become a crisis before getting
medicines to people would be bad medicine and bad public
policy." He also noted that, despite inaccurate
interpretations often reported in the media, WTO rules
and agreements do not say that countries can only limit
patent rights in emergency situations.

* Elliott also warned against any attempt to limit the
amendment to just providing generic drugs for specific
diseases. "Are we going to say that someone in
a developing country should be able to get less expensive
drugs if they have HIV or tuberculosis, but they should
just die if they have cancer or diabetes or asthma?"

* Finally, the Legal Network called on the government
to not limit, by Canadian law, the countries to which
generic medicines could be exported. Elliott explained,
"It is up to other sovereign countries to decide
how to respond to the health needs of their people.
If a drug is not patented in a country, or a compulsory
license has been issued there to allow the import of
generic drugs in accordance with that country's laws,
there is no reason why Canadian law should stand in
the way of generics being exported to that country."

Before the government's announcement, the Legal Network
and other organizations wrote this week to the Minister
of Industry putting forward a proposed amendment and
requesting a meeting to discuss the details. "We
look forward to hearing from the Minister soon about
our request," said Elliott. "It is important
that it not just be government and industry involved
in this. Civil society groups with expertise in this
area and who are responding on the ground need to be
part of the discussions."

*************************************************************

Patent Act amendments and the export of Canadian-made
generic medicides

We write to you, as representatives of Canadian civil
society organizations, to request that the Government
of Canada take a simple, yet significant, step to demonstrate
leadership and to enhance our country's response to
the HIV/AIDS pandemic and other global health challenges:
we ask that you amend Canada's Patent Act to facilitate
the export of Canadian-made generic medicines to developing
countries in need. We also respectfully request the
opportunity to meet with you to discuss our proposal
in more detail.

Recent developments at the World Trade Organization

As you know, for several years a worldwide debate has
been occurring over the impact on access to affordable
medicines in developing countries of stringent provisions
on intellectual property protection in international
treaties such as the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS Agreement) of
the World Trade Organization. In November 2001, at
the 4th WTO Ministerial Conference in Doha in November
2001, WTO members unanimously adopted a "Declaration
on the TRIPS Agreement and Public Health". In
that Declaration, they expressly stated that:

"We agree that the TRIPS Agreement does not and
should not prevent Members from taking measures to
protect public health. Accordingly, while reiterating
our commitment to the TRIPS Agreement, we affirm that
the Agreement can and should be interpreted and implemented
in a manner supportive of WTO Members' right to protect
public health and, in particular, to promote access
to medicines for all..."

In Paragraph 6 of the same Declaration, WTO Members
recognized that countries "with insufficient or
no manufacturing capacities in the pharmaceutical sector
could face difficulties in making effective use of
compulsory licensing under the TRIPS Agreement."
... WTO Members instructed the Council for TRIPS to
find an expeditious solution to this problem by the
end of 2002.

Since the Declaration was adopted in Doha, it has taken
over 21 months for WTO members to agree on a "solution"
as called for by the Ministerial Conference. On 30
August 2003, WTO Members adopted an agreement ostensibly
aimed at solving this problem, so as to make it possible
for countries lacking domestic manufacturing capacity
to import generic medicines produced elsewhere under
compulsory license.

We welcome the fact that, despite the efforts of some
countries, this agreement is not limited in its application
to only specific diseases, nor is it restricted to
emergency situations only. However, as you will be
aware, numerous humanitarian and other nongovernmental
organizations have been critical of this deal for imposing
various restrictions on the use of compulsory licensing
not faced by countries with developed manufacturing
capacity in the pharmaceutical sector. In our view,
the "solution" is burdened with procedural
obstacles and is open to abuse by those who wish to
limit or prevent countries from availing themselves
of it in order to access imports of less expensive
generic medicines. ...

To this end, countries such as Canada have a contribution
to make, as the home to potential suppliers of lower-cost
medicines. We have a well-developed generic pharmaceutical
sector, with the capacity to produce medicines urgently
needed in many developing countries. We note that the
Canadian General Pharmaceutical Association has consistently
stated that its member companies wish to produce generic
formulations of medicines for export to developing
countries. ...

Yet, because of the state of Canadian law, the resources
of this sector cannot currently be marshalled to respond
to this global need. ...

We call upon the Government of Canada to show leadership
...by immediately amending the Patent Act to facilitate
the production in Canada of generic medicines for export
to developing countries.

Proposed amendment to the Patent Act

... It would, therefore, be open to Canada to simply
amend the Patent Act to insert a provision creating
the following "limited exception" to the
exclusive rights of a patentee under Canadian law:

Manufacturing of a pharmaceutical product by a person
other than the patentee shall be allowed if the pharmaceutical
product is intended for export to a country in which,
in respect of that product, either a compulsory license
has been issued or a patent is not in force.

An accompanying amendment should make it clear, in line
with the wording of the decision adopted by the WTO
General Council on 30 August 2003, that the term "pharmaceutical
product" means "any patented product, or
product manufactured through a patented process, of
the pharmaceutical sector" and includes "active
ingredients necessary for its manufacture and diagnostic
kits needed for its use."

Such an amendment would be the most straightforward
manner in which to facilitate the production of Canadian
generics for export to respond to the need for more
affordable medicines in many developing countries.
...

We wish to point out that not only does Canada have
a moral duty to take such a simple step to prevent
unnecessary death and suffering, but amending our Patent
Act to remove restrictions on generic exports is also
consistent with Canada's duties under international
human rights law. ...

Amending our Patent Act as we have proposed is in line
with our legal obligations to take legislative and
other measures as part of Canada's international assistance
and cooperation in protecting, promoting and fulfilling
the human right to health.

The situation facing many developing countries is dire
already, and worsening by the day. We trust you share
our sense of urgency and our wish to ensure that Canada
does whatever it can to respond quickly and effectively
to the global crises of HIV/AIDS, tuberculosis and
malaria, and the many other health needs of poor people
and countries. ... It is time to take this small, but
significant, step in helping sick people get access
to affordable medicines. ,,,